DHS Plans to Publish a Proposed Rule to Protect DACA

On September 27, 2021, the Department of Homeland Security (DHS) plans to publish a proposed rule to protect the Deferred Action for Childhood Arrivals (DACA) program, which has protected more than 700,000 undocumented immigrants who arrived in the United States as children from deportation and allowed them to legally work in the country. The agency will open a 60-day public comment period for public opinion and suggestions before the proposed rule is published in The Federal Register. 

About the Proposed Rule 

The new rule declares DACA beneficiaries—or “Dreamers”—should not be a priority for removal (or deportation), based on the 2012 Napolitano Memorandum and the consistent judgment by DHS and three presidential administrations since the Obama-era program was created. In addition, the rule changes and improves the current filing process, as well as codifying and clarifying existing information related to DACA requests. 

To qualify for DACA, you must have arrived in the U.S. before reaching the age of 16, have been continuously living in the U.S. since June 15, 2007, currently enrolled in or graduated from college, never been convicted of a felony offense, and are not considered a threat to national security or public safety, among other requirements. DACA beneficiaries are given deferred action from removal and work authorization. 

Recent Court Rulings on DACA 

Since the program was established in 2012, DACA has been involved in ongoing litigation. President Donald Trump tried to terminate it in 2017, but the Supreme Court blocked his administration’s effort in 2020. 

But in July, Judge Andrew Hanen of the Southern District of Texas ruled that the creation of DACA through executive action was unconstitutional. Since the ruling, DHS has been prohibited from approving new DACA applications, but still allowed to continue renewing applications for current beneficiaries. The Biden administration plans to appeal the ruling. 

Congressional Action is Necessary to Save DACA 

Although the proposed rule provides temporary relief to Dreamers, Homeland Security Secretary Alejandro Mayorkas has urged Congress to protect them permanently through legislation. The Democrats attempted to include a pathway to citizenship for DACA recipients and other immigration provisions in the $3.5-trillion spending bill, but the Senate parliamentarian denied the move. 

Democrats are currently pushing alternative measures to protect Dreamers by updating the immigration registry, which is a legal process that gives undocumented immigrants green cards based on how long they have continuously lived in the United States. While the current law only applies to undocumented individuals who have arrived in the country before January 1, 1972, Democrats believe expanding the measure would benefit many DACA beneficiaries. 

If you are dealing with an immigration matter in Illinois, Arizona, or Texas, call Gambacorta Law at (847) 443-9303 or complete our online contact form today to let our legal team help you.